National News

DOMA wasn't totally thrown out: Here's the provision that could lead to another gay marriage battle

(Billy Hallowell) The Supreme Court’s historic rulings on gay marriage have people on both sides of the debate responding strongly. As TheBlaze previously reported, the majority of justices struck down a key part of the Defense of Marriage Act (DOMA) this morning — and subsequently also threw out the contentious Prop 8 appeal (read that decision here). As for DOMA, there may be some confusion surrounding what, exactly, was included in the original 1996 law and which parts of the legislation that was signed into law by Democratic President Bill Clinton have been axed.

To begin, the portion of the DOMA law that was ruled against in United States v. Windsor is a provision that denies benefits to legally-married gay couples. Same-sex couples, under federal law, will now, as a result of the ruling, be considered “married.” But before today, under Sec. 7 of the law, marriage was explicitly confined to unions between men and women.

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife,’” reads the law.

It is this portion that will no longer stand.

For those wondering about the ruling’s impact, consider that DOMA, a relatively short law in terms of length, had, until today, massive and sweeping jurisdiction. As CBS News notes, the provision impacted 1,100 federal laws, ranging from veterans’ benefits to complex federal tax laws.

Despite 12 states having legalized gay marriage on the books (13 if you include California), 130,000 same-sex couples were, until today’s DOMA ruling, considered unmarried under U.S. (federal) law.

But those headlines proclaiming that the federal marriage law has been overturned are going a bit too far in their analysis. While it is true that the heart of the provision has been ruled unconstitutional, some parts of DOMA still stand. Policy Mic has more:

Section 2, which was not considered by the Supreme Court in the Windsorcase, declares that states and territories of the United States have the right to deny recognition of same-sex marriages that originated in other states or territories.

Same-sex couples face several major problems that arise from Section 2 of DOMA. If a same-sex couple is married in Vermont, for example, and moves to Pennsylvania, their marriage is no longer valid.

Sec. 2 reads, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

Consider that a gay couple marries in New York, but then moves to a state where same-sex unions aren’t legal. Their marriage would then essentially (and potentially) not be legally recognized.

Clearly, there’s still much to be hashed out on the gay marriage front. Considering that the Supreme Court didn’t tackle this portion of the bill, it’s likely that another challenge could unfold down the road. The issue — which, like the DOMA marriage definition mandate that was overturned — involves states’ rights, is sure to carry with it a great deal of controversy.